Punjab

StateCommission

FA/1247/2013

Parveen Girdhar - Complainant(s)

Versus

The New India Assurance Company Ltd and another - Opp.Party(s)

Navdeep Chhabra

26 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1247 of 2013

                                                           

                                   Date of institution: 14.11.2013  

                             Date of Decision:    26.2.2015

 

 

Parveen Girdhar son of Sh. Bal Krishan, resident of House No. 479, Street No. 6, Main Bazaar Malout, District Sri Muktsar Sahib.

…..Appellant/Complainant

                                      Versus

1. The New India Assurance Company Ltd., Grover Building, Old Post Office Chowk, having its Branch Office at Malout, District Sri Muktsar Sahib through its Branch Manager/Authorized Signatory.
2. The New India Assurance Co. Ltd., through its Divisional Manager, Divisional office, 2090, The Mall, Bathinda.

…..Respondents/Opposite Parties

 

First Appeal against the order dated 17.9.2013 passed by the District Consumer Disputes Redressal Forum, Muktsar.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant             :         Sh. Maniat Sharma, Advocate for

                                                          Sh. Navdeep Chhabra, Advocate

          For the respondents        :         Sh. Vishal Chaudhary, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/complainant(hereinafter referred as “the complainant”) has filed the present appeal against the order dated 17.9.2013 passed by the District Consumer Disputes Redressal Forum, Muktsar(hereinafter referred as “the District Forum”) in consumer complaint No. 344 dated 26.11.2012 vide which the complaint filed by the complainant was dismissed by the majority Members whereas it was allowed by the President.  

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondents/opposite parties(hereinafter referred as ‘OPs’) on the allegations that he got mediclaim insurance policy from the Op bearing No. 36060334110100000070 for the period 23.9.2011 to 22.9.2012 for sum assured Rs. 3 lacs and was entitled for cashless treatment for medical expenses upto Rs. 3 lacs. This policy was a continuous one as previously he was insured for the period 2010-11. Before getting the policy, the complainant approached has family physician Dr. Rajnish Juneja for his health status, which was OK and was not suffering from any disease. However, the complainant remained under treatment from 8.12.2011 to 16.12.2011 and made request to the hospital authorities to make his cashless treatment. However, they showed their inability and asked the complainant to pay the treatment charges. Therefore, the complainant had to spend a sum of Rs. 3,25,000/- approximately on his medical treatment and lodged his claim with Op Nos. 1 & 2. However, the Ops lingered on the matter with one excuse or the other and lastly repudiated the claim vide letter dated 21.4.2012. Hence, the complaint to clear his medi-claim bill alongwith compensation and litigation expenses.

3.                The complaint was contested by the Ops, who filed written reply taking preliminary objections that the complaint was not maintainable, it was bad for non-joinder of Raksha TPA Pvt. Ltd.; Hon’ble Forum did not have any jurisdiction to entertain and try the complaint; the complainant had concealed the material facts from the Hon’ble Forum. The claim of the complainant was referred to Raksha TPA Pvt. Ltd. and Raksha TPA observed that the claim of the complainant was not tenable as he was suffering from hyper tension, CAD/TVD policy and the policy was in the second year of its inception and treatment of hyper tension comes under first and second year exclusion of the policy and hyper tension is the cause of CAD, therefore, the claim was not payable under Clause 4.3. The blockage was more than 80% of every single artery at ten different levels. The claim was not payable as per Clause 4.1 of pre-existing disease of the policy, therefore, there was no deficiency in services on the part of the Op. The complainant had not approached the Forum with clean hands; the complaint filed by the complainant was false, frivolous and vexatious to his knowledge, liable to be dismissed under Section 26 of the Act. On merits, medi-claim policy taken by the complainant was admitted. Complainant had not given any intimation regarding his admission in the hospital and when he submitted the claim, it was referred to the TPA and as per the recommendations of the TPA, it was repudiated.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, claim status Ex. C-2, writing dt. 8.12.11 Ex. C-3, letter dated 26.3.2012 Ex. C-4, certificate dated 16.12.2011 Ex. C-5, discharge summary Exs. C-6 & 7, hospital bill Ex. C-8, cash receipt Ex. C-9, bill cum receipts Exs. C-10 to 16, policy schedule Ex. C-17, cash receipt Ex. C-18, proposal form Ex. C-19, bills Exs. C-20 to 22, correspondence Ex. C-23, letter dt. 19.3.12 Ex. C-24, letter dt. 6.4.12 Ex. C-25, letter dt. 3.4.12 Ex. C-26, letter dt. 19.3.12 Ex. C-27, claim form Ex. C-28, proposal form Ex. C-29, hospital bill Ex. C-30 & 31, policy schedule Ex. C-32. On the other hand, the opposite party had tendered into evidence affidavit of J.R. Sharma, Sr. Divn. Manager Ex. OP-1.

6.                After going through the allegations in the complaint, written reply filed by the OP, evidence and documents brought on the record, the complaint was dismissed by majority Members on the ground that blockage of Artery to the extent of 80% at 10 different levels showed that the complainant was suffering from this disease for a long time, therefore, it comes within the purview of pre-existing disease and accordingly, the complaint was dismissed. Whereas the learned President after relying the judgment 2011(4) CPR 114 (NC) “United India Insurance Co. versus Krishna Prakash Dube” that burden to prove that the respondent-complainant had prior knowledge about his medical problem was squarely on the insurance company, who had not been able to discharge the same satisfactorily and had failed to prove that the respondent had suppressed the material fact with regard to his ailment at the time of taking the policy. Accordingly, the complaint was allowed with a direction to the OP to pay a sum of Rs. 2,74,410/- alongwith interest @ 7.5% from the date of order till realization.

7.                Since the order was passed by majority Members, it has been challenged by the complainant.

8.                It has been contended by the counsel for the appellant that the complainant had taken the medical insurance policy from the opposite party bearing No. 36060334110100000070 for the period 23.9.2011 to 22.9.2012 for sum assured of Rs. 3 lacs. He remained admitted in Medanta Hospital at Gurgaon during the period 8.12.2001 to 16.12.2011 and spent a sum of Rs. 3,25,000/-. The complaint was wrongly dismissed by the majority Members and the President had also allowed just Rs. 2,74,410/-. At the time of taking the policy, the complainant was not suffering from hyper tension or any CAD. It has been wrongly observed by the majority Members of the learned District Forum that the Hyper Tension was the cause of CAD and keeping in view the nature of blockage of three arteries and that too at 10 different levels shows that it was a pre-existing disease. Merely because of the fact that a person had a disease does not mean that it was a pre-existing disease. The declaration can be wrong only in case the complainant had a knowledge but he did not disclose this fact. The Ops had not placed on the record any document, which may disclose that before taking the policy, the complainant had been taking the treatment for hyper tension or CAD. Moreover, this policy was in the second year. Merely because of the fact that CAD was in three arteries and at different level does not mean that it was pre-existing disease. Even if it is admitted that it is pre-existing disease, however, the question arises whether it was in the knowledge of the complainant. However, the Ops have not placed on the record any document, which may disclose that he had taken any treatment before taking the policy. The learned President had relied upon the judgment of the Hon’ble National Commission reported in 2011(4) CPR 114 (NC) (Supra) that burden to prove that the complainant had a prior knowledge about his medical problem was squarely upon the insurance company and that the insurance company was not able to discharge the same satisfactorily. The insurance company was further required to prove that the complainant had suppressed the material fact regarding ailment from the Company at the time of filling the proposal form. In case he does not have any history for taking treatment of hyper tension and CAD then we cannot say that the complainant had concealed the material facts regarding his disease at the time of taking the policy and filling the proposal form. No contrary judgment has been cited by the counsel for the respondent. Moreover, according to the plea taken by the Ops the claim has been repudiated as per Clause 4.1 of the Policy. We have perused the file of the learned District Forum. The terms and conditions of the policy have not been placed on the record neither by the complainant nor by the opposite parties. The onus was heavy upon the OP to place on the record the terms and conditions in case they are repudiating the claim of the complainant on the basis of any terms and conditions of the policy.

9.                During the course of the arguments, the counsel for the OP has placed on the record extract of Clause 4.3 in which hyper tension was not covered for a period of two years. But nature of the policy has not been disclosed whether these terms are pertaining to the policy availed by the complainant. Therefore, even in the appeal the OPs have not been able to connect the terms and conditions of the policy allegedly issued to the complainant under which their claim is not covered. Therefore, we are of the view that the order passed by the majority Members is not legally sustainable and the order passed by the learned President is sustainable. It is further pertinent to mention here that learned President has allowed the claim of the complainant upto Rs. 2,74,410/-. The claim form filed by the complainant before the Insurance Company is Ex. C-28. It shows the expenses Rs. 2,74,410/- and medicines purchased Rs. 5900/-. However, the bill for medicines have not been placed on the record by the complainant, therefore, the learned President had rightly allowed the claim of the complainant to the extent of Rs. 2,74,410/-.

12.              In view of the above discussion, we allow the appeal, set-aside the order passed by the majority Members and affirmed the order passed by the learned President. Consequently, we partly allow the complaint to the extent of Rs. 2,74,410/-. No order as to costs.

13.              The arguments in this appeal were heard on 23.2.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

14.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran) Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

February 26, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member

 

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1247 of 2013

                                                           

                                   Date of institution: 14.11.2013  

                             Date of Decision:    26.2.2015

 

 

Parveen Girdhar son of Sh. Bal Krishan, resident of House No. 479, Street No. 6, Main Bazaar Malout, District Sri Muktsar Sahib.

…..Appellant/Complainant

                                      Versus

1. The New India Assurance Company Ltd., Grover Building, Old Post Office Chowk, having its Branch Office at Malout, District Sri Muktsar Sahib through its Branch Manager/Authorized Signatory.
2. The New India Assurance Co. Ltd., through its Divisional Manager, Divisional office, 2090, The Mall, Bathinda.

…..Respondents/Opposite Parties

 

First Appeal against the order dated 17.9.2013 passed by the District Consumer Disputes Redressal Forum, Muktsar.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant             :         Sh. Maniat Sharma, Advocate for

                                                          Sh. Navdeep Chhabra, Advocate

          For the respondents        :         Sh. Vishal Chaudhary, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/complainant(hereinafter referred as “the complainant”) has filed the present appeal against the order dated 17.9.2013 passed by the District Consumer Disputes Redressal Forum, Muktsar(hereinafter referred as “the District Forum”) in consumer complaint No. 344 dated 26.11.2012 vide which the complaint filed by the complainant was dismissed by the majority Members whereas it was allowed by the President.  

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondents/opposite parties(hereinafter referred as ‘OPs’) on the allegations that he got mediclaim insurance policy from the Op bearing No. 36060334110100000070 for the period 23.9.2011 to 22.9.2012 for sum assured Rs. 3 lacs and was entitled for cashless treatment for medical expenses upto Rs. 3 lacs. This policy was a continuous one as previously he was insured for the period 2010-11. Before getting the policy, the complainant approached has family physician Dr. Rajnish Juneja for his health status, which was OK and was not suffering from any disease. However, the complainant remained under treatment from 8.12.2011 to 16.12.2011 and made request to the hospital authorities to make his cashless treatment. However, they showed their inability and asked the complainant to pay the treatment charges. Therefore, the complainant had to spend a sum of Rs. 3,25,000/- approximately on his medical treatment and lodged his claim with Op Nos. 1 & 2. However, the Ops lingered on the matter with one excuse or the other and lastly repudiated the claim vide letter dated 21.4.2012. Hence, the complaint to clear his medi-claim bill alongwith compensation and litigation expenses.

3.                The complaint was contested by the Ops, who filed written reply taking preliminary objections that the complaint was not maintainable, it was bad for non-joinder of Raksha TPA Pvt. Ltd.; Hon’ble Forum did not have any jurisdiction to entertain and try the complaint; the complainant had concealed the material facts from the Hon’ble Forum. The claim of the complainant was referred to Raksha TPA Pvt. Ltd. and Raksha TPA observed that the claim of the complainant was not tenable as he was suffering from hyper tension, CAD/TVD policy and the policy was in the second year of its inception and treatment of hyper tension comes under first and second year exclusion of the policy and hyper tension is the cause of CAD, therefore, the claim was not payable under Clause 4.3. The blockage was more than 80% of every single artery at ten different levels. The claim was not payable as per Clause 4.1 of pre-existing disease of the policy, therefore, there was no deficiency in services on the part of the Op. The complainant had not approached the Forum with clean hands; the complaint filed by the complainant was false, frivolous and vexatious to his knowledge, liable to be dismissed under Section 26 of the Act. On merits, medi-claim policy taken by the complainant was admitted. Complainant had not given any intimation regarding his admission in the hospital and when he submitted the claim, it was referred to the TPA and as per the recommendations of the TPA, it was repudiated.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, claim status Ex. C-2, writing dt. 8.12.11 Ex. C-3, letter dated 26.3.2012 Ex. C-4, certificate dated 16.12.2011 Ex. C-5, discharge summary Exs. C-6 & 7, hospital bill Ex. C-8, cash receipt Ex. C-9, bill cum receipts Exs. C-10 to 16, policy schedule Ex. C-17, cash receipt Ex. C-18, proposal form Ex. C-19, bills Exs. C-20 to 22, correspondence Ex. C-23, letter dt. 19.3.12 Ex. C-24, letter dt. 6.4.12 Ex. C-25, letter dt. 3.4.12 Ex. C-26, letter dt. 19.3.12 Ex. C-27, claim form Ex. C-28, proposal form Ex. C-29, hospital bill Ex. C-30 & 31, policy schedule Ex. C-32. On the other hand, the opposite party had tendered into evidence affidavit of J.R. Sharma, Sr. Divn. Manager Ex. OP-1.

6.                After going through the allegations in the complaint, written reply filed by the OP, evidence and documents brought on the record, the complaint was dismissed by majority Members on the ground that blockage of Artery to the extent of 80% at 10 different levels showed that the complainant was suffering from this disease for a long time, therefore, it comes within the purview of pre-existing disease and accordingly, the complaint was dismissed. Whereas the learned President after relying the judgment 2011(4) CPR 114 (NC) “United India Insurance Co. versus Krishna Prakash Dube” that burden to prove that the respondent-complainant had prior knowledge about his medical problem was squarely on the insurance company, who had not been able to discharge the same satisfactorily and had failed to prove that the respondent had suppressed the material fact with regard to his ailment at the time of taking the policy. Accordingly, the complaint was allowed with a direction to the OP to pay a sum of Rs. 2,74,410/- alongwith interest @ 7.5% from the date of order till realization.

7.                Since the order was passed by majority Members, it has been challenged by the complainant.

8.                It has been contended by the counsel for the appellant that the complainant had taken the medical insurance policy from the opposite party bearing No. 36060334110100000070 for the period 23.9.2011 to 22.9.2012 for sum assured of Rs. 3 lacs. He remained admitted in Medanta Hospital at Gurgaon during the period 8.12.2001 to 16.12.2011 and spent a sum of Rs. 3,25,000/-. The complaint was wrongly dismissed by the majority Members and the President had also allowed just Rs. 2,74,410/-. At the time of taking the policy, the complainant was not suffering from hyper tension or any CAD. It has been wrongly observed by the majority Members of the learned District Forum that the Hyper Tension was the cause of CAD and keeping in view the nature of blockage of three arteries and that too at 10 different levels shows that it was a pre-existing disease. Merely because of the fact that a person had a disease does not mean that it was a pre-existing disease. The declaration can be wrong only in case the complainant had a knowledge but he did not disclose this fact. The Ops had not placed on the record any document, which may disclose that before taking the policy, the complainant had been taking the treatment for hyper tension or CAD. Moreover, this policy was in the second year. Merely because of the fact that CAD was in three arteries and at different level does not mean that it was pre-existing disease. Even if it is admitted that it is pre-existing disease, however, the question arises whether it was in the knowledge of the complainant. However, the Ops have not placed on the record any document, which may disclose that he had taken any treatment before taking the policy. The learned President had relied upon the judgment of the Hon’ble National Commission reported in 2011(4) CPR 114 (NC) (Supra) that burden to prove that the complainant had a prior knowledge about his medical problem was squarely upon the insurance company and that the insurance company was not able to discharge the same satisfactorily. The insurance company was further required to prove that the complainant had suppressed the material fact regarding ailment from the Company at the time of filling the proposal form. In case he does not have any history for taking treatment of hyper tension and CAD then we cannot say that the complainant had concealed the material facts regarding his disease at the time of taking the policy and filling the proposal form. No contrary judgment has been cited by the counsel for the respondent. Moreover, according to the plea taken by the Ops the claim has been repudiated as per Clause 4.1 of the Policy. We have perused the file of the learned District Forum. The terms and conditions of the policy have not been placed on the record neither by the complainant nor by the opposite parties. The onus was heavy upon the OP to place on the record the terms and conditions in case they are repudiating the claim of the complainant on the basis of any terms and conditions of the policy.

9.                During the course of the arguments, the counsel for the OP has placed on the record extract of Clause 4.3 in which hyper tension was not covered for a period of two years. But nature of the policy has not been disclosed whether these terms are pertaining to the policy availed by the complainant. Therefore, even in the appeal the OPs have not been able to connect the terms and conditions of the policy allegedly issued to the complainant under which their claim is not covered. Therefore, we are of the view that the order passed by the majority Members is not legally sustainable and the order passed by the learned President is sustainable. It is further pertinent to mention here that learned President has allowed the claim of the complainant upto Rs. 2,74,410/-. The claim form filed by the complainant before the Insurance Company is Ex. C-28. It shows the expenses Rs. 2,74,410/- and medicines purchased Rs. 5900/-. However, the bill for medicines have not been placed on the record by the complainant, therefore, the learned President had rightly allowed the claim of the complainant to the extent of Rs. 2,74,410/-.

12.              In view of the above discussion, we allow the appeal, set-aside the order passed by the majority Members and affirmed the order passed by the learned President. Consequently, we partly allow the complaint to the extent of Rs. 2,74,410/-. No order as to costs.

13.              The arguments in this appeal were heard on 23.2.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

14.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                                        (Jasbir Singh Gill)

                                                                                                    Member

 

February 26, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member